Monthly Archives: January 2016

In a brief that evokes the sanctuary movement of the 1980s, religious leaders in Texas recently filed an amicus brief in support of a nonprofit organization’s efforts to resettle Syrian refugees. The brief is part of a small but growingtrend of using statutory and constitutional religious liberty protections—which have been used to great effect by the religious right— to advance progressive causes.

Since filing suit in early December, the state of Texas been embroiled in a complicated and politically charged legal battle with the U.S. government about the resettlement of refugees within its borders. In its original complaint, the Texas Health and Human Services Commission argued that the government had resettled refugees “without consulting with Texas or working in close cooperation with the Commission” in violation of the Refugee Act of 1980. The suit additionally claimed that the nonprofit International Rescue Committee (IRC), which provides aid to refugees, had broken contracts with the State. Among other relief, it requested an injunction preventing the resettlement of Syrian refugees until the court found that the government and IRC complied “with their statutory and contractual duties to consult with Texas in advance of placing refugees and to provide information to the Commission and work in close cooperation with the Commission.”

The amicus brief, signed by Christian, Jewish, and Unitarian clergy members, argues that Texas’ efforts to stymie the resettlement of refugees based on their national origin “threatens religious freedom in Texas.” Citing the religious liberty protections of the First Amendment, the federal Religious Freedom Restoration Act (RFRA), and Texas’ Religious Freedom Restoration Act (TRFRA), the brief argues that the “State’s actions against local resettlement agencies potentially affect the ability of many religious Texans to live out and enact [their] beliefs,” including their “sincere calling to provide charitable and humanitarian aid to refugees.”

It’s a somewhat strange argument, considering that the amici are not asking for an exemption from any state or federal law that currently restricts them. Rather, they are claiming that Texas is violating their religious rights by filing a lawsuit that does not involve them at all. Nevertheless, it’s worth taking a closer look at the brief, as similar arguments could be made in the future to request exemptions from federal immigration laws.

Under both RFRA and TRFRA, the government cannot substantially burden the free exercise of religion unless it is the least restrictive means of furthering a compelling government interest. Although the brief mentions both statutes, it challenges only state actions and therefore only the latter law should apply. Texas courts have historically looked to how RFRA has been interpreted, however, in interpreting TRFRA.[1]

Texas courts analyze TRFRA using a four-part test, asking: (1) whether the government’s regulations burden the plaintiff’s free exercise of religion; (2) whether the burden is substantial; (3) whether the regulations further a compelling governmental interest; and (4) whether the regulations are the least restrictive means of furthering that interest.[2]

Looking to the first question, the amicus brief states that it “cannot seriously be doubted that the sincere calling to provide charitable and humanitarian aid to refugees constitutes free exercise of religion.” This claim is supported by the Supreme Court’s recent opinion in Hobby Lobby, which deferred entirely—and problematically— to the Plaintiffs’ definition of what constitutes religious exercise. Federal courts have been extremely reticent to take a deeper look at the definition and scope of “religious exercise,” leading to a dearth of theory and guidance on this issue. And while a few Texas cases interpreting TRFRA have looked more deeply into the definition of religious exercise,[3] other cases have followed federal courts’ broad and deferential view.[4] On the other hand, while providing aid may constitute religious exercise, it’s not clear that the federal government’s statutory process for accepting or rejecting refugees implicates the amici’s exercise of religion at all.

The brief’s argument on the second TRFRA question— whether any burden placed on their religious exercise is substantial— is far less convincing. The amici argue that the State’s actions burden religious practice by hindering the ability of religious nonprofits to provide aid, and by requiring agencies to “discriminate against certain refugees solely because they were born in Syria,” which is “repugnant to the religious beliefs of many people of faith, including amici.”[5] While religious organizations may have a right to provide services to refugees in a nondiscriminatory manner, this right is not substantially burdened by Texas’ efforts to force the federal government to comply with its own immigration law, or to enforce contracts the state signed with IRC. The court may well find that neither the federal government nor the IRC breached any law or contract with Texas. However the amici’s religious practice is not curtailed, and there is no impact on their religious expression, by the state’s actions in alleging this misconduct. Amici may have a right to provide aid to Syrian refugees, but nonprofits don’t have a right to make the government deliver Syrian refugees to them.

The brief sums up its argument on the third TRFRA question in one sentence: “Texas’s amorphous claim of a security interest in excluding Syrian refugees from Texas does not approach the compelling government interest necessary to support impinging on the religious freedom of faith-based charities.” Arguing that there is no compelling interest, it does not address the fourth question regarding whether the state’s actions are the least restrictive means of furthering its interest.

It’s hard to extrapolate to future RFRA claims based on this case, as RFRA demands that courts ask whether or not there is a compelling interest in applying the challenged law to the petitioners specifically. In this case, Texas’ suit against IRC and the federal government does not involve the amici at all. Nevertheless it seems safe to say that the government will at least sometimes be able to demonstrate a compelling interest in enforcing its immigration laws on everyone, including religious persons and organizations.

Texas’ suit has been a long shot from the beginning, so the amicus brief is unlikely to be a deciding factor in the court’s ultimate decision. Nevertheless, the brief may spark the imagination of other pro-immigrant rights religious leaders to speak out when “[p]eople of faith feel trapped” between the “State’s [actions] and their religious calling to care for the needy and downtrodden.” While this is a noble goal, the amici’s argument could create risky precedent if successful. If RFRA requires the government to bring Syrian refugees to Texas, it could open the door to demands by groups across the political spectrum for government assistance in carrying out their own religious missions. This goes far beyond the intended and appropriate scope of RFRA.

[3] See, e.g., Emack. V. State, 354 S.W.3d 828, 839 (Tx. Ct. App. 2011) (Appellant does not point to evidence that would support a finding that the searches conducted … curtailed his ability to express adherence to his faith through a particular religiously motivated act…); McFaul v. Valenzuela, 684 F.3d at 576-77.

[4] For example, a 2011 opinion held that a jury could conclude that the religious exercise of church groups encompassed not just the right to feed the homeless at all, but to “spontaneously share food with homeless people or to actively seek them out in hard to reach, unpredictable, and ever-changing locations.” See, Big Hart Ministries Ass’n Inc. v. City of Dallas, 2011 WL 5346109 at *4 (N.D. Tex. 2011).

[5] Texas doctrine on what constitutes a “substantial” burden is somewhat muddled, but has been described as a burden that is “real vs. merely perceived, and significant vs. trivial,” with courts focusing on the “degree to which a person’s religious conduct is curtailed and the resulting impact on his religious expression.” See, Merced v. Kasson, 577 F.3d at 588-89.

Last Friday, the Supreme Court agreed to hear a case that could narrow the “play in the joints” between the requirements of the Free Exercise Clause and the prohibitions of the Establishment Clause. For years, the Supreme Court has acknowledged some room for state decision-making in allowing or restricting grants to religious actors in ways that neither violate the Establishment Clause by supporting religion nor violate the Free Exercise Clause by discriminating against religion. Now, a Lutheran preschool is asking the Supreme Court to restrict this “play in the joints” by limiting states’ ability to deny funds to religious institutions.

On appeal from the 8th Circuit, Trinity Lutheran Church of Columbia v. Pauley involves a program administered by the Missouri Department of Natural Resources (DNR), which provides funds for the purchase of recycled tires to resurface playgrounds. In 2012, Trinity

FreeImages.com/Palmer W. Cook

Lutheran Church applied for a DNR grant to replace the playground surface for the Learning Center, a private preschool and daycare operated by the church on church premises. DNR denied the grant citing Article I, § 7 of the Missouri Constitution, which states “no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect, or denomination of religion.” Such provisions limiting aid to religious institutions, sometimes called “Blaine Amendments,” exist in the majority of state constitutions.

Trinity sued DNR, claiming that the agency’s denial of funds violated the Equal Protection Clause of the Fourteenth Amendment and the Free Exercise and Establishment Clauses of the First Amendment. In response, DNR filed a Motion to Dismiss, arguing that the agency’s actions were both required by the Missouri Constitution and permissible under the Federal Constitution.

Trinity’s complaint was careful to frame the issue as an as-applied challenge of the DNR’s actions, rather than a facial challenge to the state Constitution’s limits on religious funding. Nevertheless the Eight Circuit held that their claims were “plainly facial attacks on Article I, § 7,” and a Supreme Court decision on this matter could clearly threaten the administrability, if not the constitutionality, of Blaine amendments generally.

In defending its actions, Missouri could have argued that providing funds to Trinity would have violated the Establishment Clause, and that Trinity’s exclusion from the grant program was therefore not just acceptable but constitutionally mandated. Instead DNR took a more moderate position. It filed a Motion to Dismiss arguing that the denial of funds did not restrict Trinity’s practice of religion, and therefore could not constitute either a free exercise violation or religious discrimination. Furthermore, it stated that there was no precedent to construe the Establishment Clause’s “negative prohibition [on establishment of religion] as a basis for extending the right of a religiously affiliated group to secure state subsidies.”

The District Court granted DNR’s Motion to Dismiss, and the Eighth Circuit affirmed. Even though the question of whether awarding a grant to Trinity would have violated the Establishment Clause was not briefed, the Eighth Circuit commented in passing that it was “rather clear” under current Supreme Court precedent that Missouri could have provided such funds. However it held that Missouri was not compelled to do so under current First Amendment doctrine as “[n]o Supreme Court case… has granted such relief,” and it was not the place of a lower court to make such a “constitutional leap.”

Now that the Supreme Court has accepted the appeal, SCOTUS might be more than willing to make the leap.

The Supreme Court’s decision will turn in large part or how broadly or narrowly it construes its decision Locke v. Davey, a 2004 case that upheld Washington State’s denial of scholarship aid to students perusing a degree in devotional theology. Trinity argues that the Locke opinion should be read narrowly, and hinged on specific circumstances of the case including that the funds would have been used for an essentially religious endeavor and the exclusionary policy was not linked to a Blaine Amendment (which Trinity argues is rooted in anti-Catholic prejudice and therefore constitutionally suspect). DNR argues that Locke should control, and that the agency is not required to provide a direct grant of funds to Trinity.

The briefs aren’t even in yet so there’s only so much one can predict at this point. But this is sure to be a complex and interesting case that has the possibility of provoking as many constitutional questions as it answers.

This week, Atheist activist and attorney Michael Newdow filed a federal complaint challenging the inclusion of “In God We Trust” on U.S. currency. After losing several similar cases over the past decade brought under the Establishment Clause, Free Exercise Clause, and Religious Freedom Restoration Act (RFRA) Newdow is trying again— this time on behalf of over forty plaintiffs, including two Atheist organizations.

As a preliminary matter, it may seem odd that Atheists are bringing a claim under Constitutional and statutory protections intended to safeguard religious belief. The Supreme Court, however, has repeatedly found that Atheists and other non-believers have First Amendment religious freedom protections. And while the question of whether Atheists are covered by RFRA has not been decisively litigated by the Supreme Court, lower courts have taken their claims seriously. The only evidence that Atheists are not protected by the statute is a quote from Justice Stevens’ concurrence in City of Boerne v. Flores, which says RFRA “has provided the Church with a legal weapon that no atheist or agnostic can obtain.” This is mere dicta, however, and has not prevented lower courts from applying RFRA protections to Atheists.

Under RFRA, the federal government may not substantially burden a person’s exercise of religion unless 1) it acts is in furtherance of a compelling governmental interest; and 2) application of the religious burden is the least restrictive means of furthering that interest. Newdow’s complaint argues that by placing “In God We Trust” on the nation’s currency, the government has substantially burdened the plaintiffs’ exercise of religion “by requiring them – as the price to pay for using the nation’s coins and currency bills – to personally bear a religious message that is the antithesis of what they consider to be religious truth” and to “proselytize for a religious claim that is completely contrary to their personal religious opinions.” Additionally, Newdow claims the government required plaintiffs “to engage in activity that they believe furthers the anti-Atheist religious prejudices that pervade this nation’s society.” He argues that the government has “no compelling interest to justify these burdens.”

In Newdow’s past cases, courts have rejected his claim that the inclusion of “In God We Trust” on U.S. currency poses a substantial burden on the exercise of Atheism. The Ninth Circuit wrote that the harms imposed on Newdow by the motto rested on an incorrect premise, that “the motto represents a purely religious dogma and constitutes a government endorsement of religion.” In fact, the court explained that the motto was merely “patriotic or ceremonial” rather than theistic, and therefore it could not be a “substantial burden” on Newdow’s exercise of Atheism. In a later case, the Second Circuit found that there was no substantial burden on plaintiffs’ exercise of religion because “the carrying of currency, which is fungible and not publicly displayed, does not implicate concerns that its bearer will be forced to proclaim a viewpoint contrary to his own.”

Both circuit court opinions essentially argue that Atheists should not feel substantially burdened by the presence of “In God We Trust” on currency, either because the motto is not actually religious or because carrying a religious motto in their pocket does not violate Atheist beliefs. This method of reasoning was soundly rejected by the Supreme Court in Burwell v. Hobby Lobby. In that case, the government tried to argue that requiring Christian companies to provide contraceptive coverage in their insurance plans was not a substantial burden, because the action being imposed was too attenuated from their religious belief that abortion is morally wrong. The Court held that this was not the correct way to asses a substantial burden, as this was a question of theology rather than law. It explained that “federal courts have no business addressing” the question of “whether the religious belief asserted in a RFRA case is reasonable,” but should rather ask whether the government is coercing the plaintiff to violate his or her belief.

Newdow pointed this out in his Petition for a Writ of Certiorari to the Supreme Court in the Second Circuit case in 2014, months after Hobby Lobby was decided. The Court however, declined to take the case. And, interestingly, Newdow did not cite to Hobby Lobby in his latest petition challenging “In God We Trust.”

There is much to be critiqued about Hobby Lobby’s “substantial burden” analysis, including that it instructs courts to defer not only to a petitioner’s personal religious beliefs, but to his or her own facts. But what’s good for the goose should be good for the gander— and if Newdow and other plaintiffs’ claim that using money imprinted with “In God We Trust” violates their deeply-held beliefs, it is not clear why courts should be able to second-guess them.

It seems extremely unlikely that Newdow’s latest attempt will make its way to SCOTUS. If by any chance it does, however, it will be enlightening to see whether and how the Court gets out under its own Hobby Lobby reasoning, which would suggest that Newdow and Newdow alone gets to decide whether “In God We Trust” is a burden to his Atheist beliefs.

Religious accommodations in medicine typically call to mind a pharmacist’s refusal to dispense birth control, a hospital’s refusal to provide abortion, or a parent’s refusal to vaccinate her child. In two states however, religious accommodations allow patients an exemption from death itself. The problem of religious opposition to legal “brain death” and what to do about it is currently playing out in the dramatic and tragic case of Jahi McMath.

Following cardiac arrest after a surgery for sleep apnea, 13-year-old Jahi McMath was declared brain dead by her doctors at Children’s Hospital Oakland in California in December of 2013. Children’s Hospital informed Jahi’s family, including her mother, Nailah Winkfield, of their intention to remove Jahi from her ventilator and suggested that they consider donating Jahi’s organs.

Death is widely accepted by medical communities and the public to mean the loss of either all cardio-respiratory functions or of all functions of the entire brain, including the brain stem. In the latter case, the patient may appear alive—in Jahi’s case, with the assistance of a ventilator she breathes, has a beating heart, and has healthy skin and organs—yet still be considered “dead” with no constitutional or statutory right to life. Once someone is legally dead, there is no obligation for a hospital to continue life support or an insurance plan to pay for care, regardless of their family’s wishes.

Despite the doctors’ pronouncement, Ms. Winkfield adamantly objected to the removal of Jahi’s life support. She argued that her daughter was in fact still alive, due in part to her religious belief that death occurs only as the loss of cardio-respiratory functions, regardless of brain activity or the lack thereof.

Ms. Winkfield went to court to try and keep Jahi on a ventilator, and to request that Children’s Hospital provide her with a tracheotomy and feeding tube. Superior Court Judge Evelio Grillo found that Jahi met California’s criteria for brain death, and therefore Children’s Hospital could remove her ventilator. However he stayed his order so as to keep Jahi on life support while Ms. Winkfield appealed the ruling.

Following negotiations between Ms. Winkfield and Children’s Hospital that were overseen by a U.S. Magistrate Judge, the hospital finally agreed to allow Jahi to leave the hospital…but only if Ms. Winkfield consented, despite her opposition, to the completion of Jahi’s death certificate.

Under normal circumstances, the County Coroner would have then completed an investigation and released Jahi’s body to next of kin for burial. Instead, under the terms of the agreement, Jahi was transferred from Children’s Hospital to the Alameda County Coroner (presumably while remaining on life support) and then back to a healthcare facility—this time across the country, in New Jersey.

Why to New Jersey? Because under that state’s religious accommodation law, Jahi is still alive. A New Jersey law on brain death states that the death of an individual:

“Shall not be declared upon the basis of neurological criteria … when the licensed physician authorized to declare death, has reason to believe…that such a declaration would violate the personal religious beliefs of the individual. In these cases, death shall be declared, and the time of death fixed, solely upon the basis of cardio-respiratory criteria.”[1]

Under this exemption, because of Jahi’s religious beliefs doctors in New Jersey may not remove her ventilator. Furthermore, as a living person she is able to remain on health insurance, relieving her family of enormous medical costs.

Two years after moving to New Jersey, however, Ms. Winkfield wants to bring Jahi back home to California—without, of course, risking the termination of her ongoing medical support. Two weeks ago, a federal suit was filed on behalf of Jahi McMath, now 15, requesting that California invalidate her death certificate. While the complaint focuses on demonstrating that Jahi does have neurological activity, it also argues that the death certificate violates Jahi and her mother’s constitutional and statutory religious rights.

Ms. Winkfield and Jahi state that they are “Christians with firm and sincerely held religious beliefs that as long as a person’s heart is beating, that person is alive.” According to the complaint, Jahi’s death certificate, by permitting California doctors to withhold all medical care, makes it impossible for Jahi and her mother to exercise their religion, which requires “the provision of medical treatment to all persons with a spontaneous heartbeat.” Therefore, they argue that the existence of the death certificate is a violation of their Free Exercise rights under the First Amendment. The complaint also alleges a violation of the Religious Land Use and Institutionalized Persons Act (RLUIPA), claiming that the death certificate, which was issued while Jahi was “institutionalized” in Children’s Hospital, imposes a “substantial burden” on her religious exercise and is not narrowly tailored to further a compelling government interest.

Jahi’s First Amendment claim has little merit, as California’s laws on brain death are neutral laws of general applicability with no intent to stifle religious belief or practice, and they are not being applied in a discriminatory manner. Her RLUIPA claim is also likely to fail, as RLUIPA has never been held to apply to a private, non-psychiatric hospital,[2] and because even if Children’s Hospital were covered by RLUIPA the action that she is challenging—the issuance of her death certificate— was taken by the State of California, not by Children’s Hospital itself. Additionally, Ms. Winkfield eventually agreed to the creation of the death certificate.

Despite the weakness of Jahi’s legal claims, they still raise the interesting question of whether Jahi’s religious objection to brain death should be honored by the state of California as a matter of public policy, as it is in New Jersey. Where a religious accommodation poses a clear threat to an individual or to public health—for example, where medical professionals deny necessary care, or in the case of vaccine exemptions—the concern for third party harms should generally outweigh any burden on religious liberty. No exemption should be allowed in such circumstances.

In Jahi’s case, however, any harms imposed on third parties are more tenuous. So long as she is not cared for in a facility where resources are scarce (and therefore her presence may divert a bed or equipment from a patient with a better prognosis), giving Jahi a religious exemption would not clearly harm any identifiable person. While her medical providers may feel some discomfort in or even opposition to providing care to a brain dead patient, as in the reproductive health context a provider’s personal beliefs should rarely trump a patient’s medical wishes.

Even if there is no direct and specific third party harm, however, allowing a religious exemption for brain death would certainly impose a burden on California’s medical system as a whole. Should this burden outweigh the interest of Jahi and her family, and others like them? Need state or private insurance plans cover the potentially extraordinary costs of Jahi’s care and, if so, must they also cover after-death care for persons with secular objections to “brain death”? Allocating the cost of Jahi’s care may be the trickiest part of this complicated issue, though it is barely mentioned in the complaint.

I’m not prepared to throw my support for or against religious exemptions to “brain death” without more research and thought, except to say that Jahi’s story is a case in which the burden to the individual seems severe, and the third party harms, particularly if no cost is imposed on the State, are attenuated. Even if Jahi’s legal claims fail, it will be interesting to see whether her case incites a call in California and elsewhere for a “death exemption,” and if so, who will be required to pick up the tab.

[1] A similar, though less stringent rule exists in New York through a state regulation requiring hospitals to have a “written policy regarding determinations of death” including “a procedure for the reasonable accommodation of the individual’s religious or moral objection to the determination.” Interestingly, these religious exemptions to legal “brain death” were motivated by a concern for the large numbers of Orthodox Jewish residents in New York and New Jersey, some of whom reject the concept of “brain death” as death.
[2] RLUIPA has been applied in certain psychiatric hospitals and mandated treatment programs. See, e.g., Sokolsky v. Voss, 2009 WL 2230871 (E.D.Ca. 2009). Interestingly, the parents of Terri Schiavo, the subject of an infamous legal battle over artificial life support, made a RLUIPA claim similar to Jahi’s against the hospice where Ms. Schiavo being cared for. This claim was dismissed as the court found that they had failed to demonstrate the hospice was a state actor. See Schiavo ex rel. Schindler v. Schiavo, 357 F.Supp.2d 1378 (2005).